REPORT AND RECOMMENDATION

KATHERINE P. NELSON, Magistrate Judge.

This action is before the undersigned Magistrate Judge on a motion to dismiss for lack of jurisdiction (doc. 5) filed by the defendant, the Secretary of the Department of Veterans Affairs, designated in the Complaint as the Veterans Administration (doc. 1). This action has been referred to the undersigned Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Upon consideration of the motion, plaintiff's response in opposition thereto (doc. 12), and all other relevant portions of the record,1 the undersigned concludes that the motion to dismiss for lack of jurisdiction is due to be GRANTED.

I. Background.

On January 6, 2012, plaintiff proceeding pro se filed a Complaint (doc. 1) against the Veterans Administration claiming that he was denied the right to an impartial hearing regarding his "service connected disability." (Doc. 1 at ¶¶ 4, 6). The Secretary of Veterans Affairs responded by filing a motion to dismiss for lack of jurisdiction (doc. 5).2 Plaintiff, in apparent response to the Court's Order dated April; 24, 2012 (doc. 9), filed an "objection" (doc. 12) to the defendant's motion to dismiss (doc. 9), which challenged certain factual allegation by the defendant but failed to address any of the legal arguments concerning this Court's lack of jurisdiction over this matter. Plaintiff specifically declares that he is "pleading for this court to take the case and get it out of the V.A's control." (Doc. 12 at 1). The defendant thereafter advised the Court on May 10, 2012, that it would not file a reply because the "Plaintiff has not sufficiently, nor accurately refuted Defendant's arguments that this Court lacks subject matter jurisdiction in the instant case." (Doc. 14). The matter is, therefore, ripe for adjudication.

II. Standard for 12(b)(1) Motion.

A motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(1) may assert challenges to subject matter jurisdiction which are either factual or facial. McElmurray v. Consol. Gov't of Augusta-Richmond Cnty, 501 F.3d 1244, 1251 (11th Cir. 2007). It is well established that, when a defendant properly challenges subject matter jurisdiction under Rule 12( b)( 1) the district court is free to independently weigh facts, and `may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P. 56'. Turcios v. Delicias Hispanas Corp., 275 Fed. Appx. 879, 880 (11th Cir. 2008), quoting Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). "Motions to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may attack jurisdiction facially or factually." Spring Air International, LLC v. R.T.G.Furniture Corp., 2010 WL 4117627, *1 (M.D. Fla. Oct. 19, 2010), quoting Morrison, 323 F.3d at 925 n. 5. With respect to a facial challenge, the allegations in the complaint are assumed to be true by the Court, which then must determine whether the complaint sufficiently alleges a basis for subject matter jurisdiction. Id., citing Lawrence, 919 F.2d at 1529. In contrast to a facial challenge, a factual attack challenges the "existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. at *2, quoting Lawrence, 919 F.2d at 1529. (additional citations and footnotes omitted.)

In other words, "when a Rule 12(b)(1) motion constitutes a factual attack on subject matter jurisdiction, `no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional issue'." Turcios, 275 Fed. Appx. at 880, (quoting Lawrence, 919 F.2d at 1529). The Eleventh Circuit has made it clear, however, that:

Turcios, 275 Fed.Appx. at 880, quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997). "[J]urisdiction becomes intertwined with the merits of a cause of action when `a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief.'" Id. at 880, quoting Morrison, 323 F.3d at 926 (quoting Sun Valley Gasoline, Inc. v. Ernst Enters., 711 F.2d 138, 139-40 (9th Cir. 1983)). See also Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir), cert. denied, 454 U.S. 897 (1981)("Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case."). "A district court may consider materials attached to a motion to dismiss pursuant to Rule 12(b)(1) `if the material is pertinent to the question of the District Court's jurisdiction since it is always the obligation of a federal court to determine if it has jurisdiction."). Maria v. U.S. ex rel. Army Corps of Engineers, 2010 WL 2009968, *2 (E.D. La. May 17, 2010), citing Green v. Forney Eng'g Co., 589 F.2d 243, 246 (5th Cir. 1979), quoting State of Alabama ex rel. Baxley v. Woody, 473 F.2d 10, 12 (5th Cir. 1973).

"Federal courts are courts of limited jurisdiction [and] possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises." Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). "[O]nce a court determines that there has been no [jurisdictional] grant that covers a particular case, the court's sole remaining act is to dismiss the case for lack of jurisdiction." Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000). See also Vickson v. U.S. Dept. of Veterans Affairs, 2012 WL 1606012, *1 (M.D. Fla., May 8, 2012)(Court held that it lacked subject matter jurisdiction because "[c]laims concerning veterans' benefits are governed by 38 U.S.C. § 511, a statute curtailing this Court's review of VA benefits determinations."); Bell v. United States, 2012 WL 1599272 (M.D. Ala. Apr. 13, 2012)(same).

In this case, the motion to dismiss is predicated on the contention that "[t]he United States has not waived its sovereign immunity as to review of Department of Veterans Affairs (VA) decisions or procedures by any court other than the United States Court of Appeals for Veterans Claims (CAVC)."3 "Federal sovereign immunity deprives a court of subject matter jurisdiction." Stackhouse v. United States, 2011 WL 820885, * 6 (D. Minn. Feb. 11, 2011), quoting Cooke v. Stanton, 2009 WL 424537 at * 4 (D. Minn. Feb. 18, 2009)(citing Riley v. United States, 486 F.3d 1030, 1031-32 (8th Cir. 2007)). When a challenge to subject matter jurisdiction is advanced, the plaintiff bears the burden to establish that jurisdiction exists. U.S. ex rel. Sanders v. East Alabama Healthcare Authority, 953 F.Supp. 1404, 1408-09 (M.D. Ala., 1996), citing Thomson v. Gaskill, 315 U.S. 442 (1942); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert denied, 449 U.S. 953 (1980); see also Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). If the motion to dismiss under Rule 12(b)(1) is based on a deficiency in the pleadings, the "standard of review is the same standard we apply in Rule 12(b)(6) cases." Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007)(citing Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697-98 (8th Cir. 2003). Under this standard, the plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims, namely the right to jurisdiction in this Court, rather than facts that are "merely consistent with such a right." Id., citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

III. Analysis.

At issue in this case is the authority, if any, of this Court to review a decision by the Department of Veterans Affairs (VA), or the procedures followed by the VA. Plaintiff has proffered no legal basis to find that the United States has waived its sovereign immunity in this matter.4 To the contrary, it is well established that:

In re Ressell, 155 F.3d 1012 (8th Cir. 1998). See also Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 656 (D.C. Cir. 2010)("Adverse decisions by the Board [of Veterans' Appeals] can [] be appealed exclusively to the United States Court of Appeals for Veterans Claims ("CAVC"), an independent Article I federal court, [which] may review all legal issues . . . and, notably, has the power to `compel action of the Secretary unlawfully withheld or unreasonably delayed' [and] [d]ecisions of the CAVC may be appealed to the United States Court of Appeals for the Federal Circuit which has authority to `decide all relevant questions of law, including interpreting constitutional and statutory provisions'."); Veterans for Common Sense v. Shinseki, 2012 WL 1574288, *8 (9th Cir. May 7, 2012)("[T]he courts do not acquire jurisdiction to hear challenges to benefits determinations merely because those challenges are cloaked in constitutional terms."), quoting Sugrue v. Derwinski, 26 F.3d 8, 10-11 (2nd Cir. 1994), and Hicks v. Veterans Admin., 961 F.2d 1367, 1369-70 (8th Cir.1992)("veteran's claim that his benefits were reduced because he exercised his First Amendment rights was ultimately a `challenge to a decision affecting benefits' and precluded by § 511."); Weaver v. United States, 98 F.3d 518, 519-20 (10th Cir. 1996)("even where the veteran has challenged some other wrongful conduct that, although unrelated to the VA's ultimate decision on his claim, affected his or her benefits proceeding" the matter constituted a "challenge" that was precluded by § 511."). A review of the plaintiff's Administrative Record demonstrates that plaintiff is aware of the appellate procedures and has employed the same successfully as far as the CAVC on two prior occasions. See Docs. 5-2 and 5-4.

Nor may plaintiff rely upon the waiver of immunity found in the Administrative Procedure Act (APA), 5 U.S.C. § 702, because that waiver applies only to agency action for which there is no adequate remedy in court, 5 U.S.C. § 704.5 Even if this Court assumed that plaintiff intended to assert a constitutional challenge to the VA's adverse decision regarding his claim for benefits, such a claim is unavailing. "[S]ince the enactment of the [Veteran's Judicial Review Act ("VJRA")], federal courts have held repeatedly that they lack jurisdiction over constitutional challenges to VA benefits decisions." Slater v. U.S. Dept. of Veteran Affairs, 2008 WL 977225, *5 (M.D. Fla. Apr. 9, 2008), quoting Beamon v. Brown, 125 F.3d 965, 972 (6th Cir. 1997)(citing Zuspann v. Brown, 60 F.3d 1156 (5th Cir. 1995) (district court lacked jurisdiction over benefits claim where plaintiff alleged due process violation)); see also Sugrue v. Derwinski, 26 F.3d 8, 10-11 (2nd Cir. 1994); Hicks v. Veterans Administration, 961 F.2d 1367 (8th Cir. 1992); Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1500 (2nd Cir. 1992)(federal courts precluded "from hearing claims-even if draped in constitutional terms-seeking a particular type or level" of VA benefits); Pate v. Dept. of Veterans Affairs, 881 F.Supp. 553, 555-56 (M.D.Ala. 1995)(district court lacked jurisdiction over benefits claim, "although couched in terms of a constitutional claim"). Sovereign immunity is, therefore, not waived under the APA with regard to the adjudication of veterans' benefits claims, such as plaintiff's claim at issue in this case.

Although plaintiff takes issue with the defendant's assertion that he "maintains he was discharged from the Army with a 30% disability rating, a rating he did not receive from the VA [and] . . . seeks to compel restoration of the former disability rating,"6 plaintiff does not challenge, nor could he, that this Court's review of the VA's benefit determinations as to the plaintiff "has been precluded by 38 U.S.C. § 511 and its predecessors." (Doc. 5 at 6). That section, as amended by the Veterans' Judicial Review Act (VJRA), Pub.L.No. 100-687, Div. A, §101, 102 Stat. 4105 (1988), and the Department of Veterans Affairs Codification Act, Pub.L.No. 102-83, §2(a), 105 Stat. 378, 388 (1991), provides in pertinent part that:

38 U.S.C. § 511 (emphasis added). The Supreme Court has addressed this statute and held that its purpose is twofold: (1) to ensure that veterans' benefit claims will not burden the courts and VA with expensive and time-consuming litigation, and (2) to ensure that the technical and complex determinations and applications of VA policy regarding such claims will be adequately and uniformly made. Johnson v. Robison, 415 U.S. 361, 370 (1974).

When Congress enacted the VJRA on November 18, 1988, it provided a limited waiver of sovereign immunity for lawsuits seeking review of VA benefit decisions. Subject to certain stated limitations, the VJRA vests exclusive jurisdiction in the United States Court of Veterans Appeals (CVA) to review such decisions. See 38 U.S.C. ch. 72. Pursuant to 38 U.S.C. § 511(a), the Secretary of Veterans Affairs is responsible for deciding all questions concerning the provision of benefits to veterans, their dependents, or their survivors. An appeal from the Secretary's decision concerning benefits lies with the Board of Veterans' Appeals, which is the division within VA responsible for deciding appeals from decisions on claims for veterans' benefits. 38 U.S.C. §7104(a); 38 C.F.R. §20.101(a). The Board of Veterans' Appeals' decision may be appealed by the claimant to the Court of Veterans Appeals ("CVA"), pursuant to 38 U.S.C. §7252(a), and then, under certain circumstances, to the United States Court of Appeals for the Federal Circuit, pursuant to 38 U.S.C. §§ 7252(c) and 7292. As the Second Circuit Court of Appeals observed:

Larrabee, 968 F.2d at 1501. The Second Circuit also set forth the limited scope of the review permitted should the case be appealed to the Federal Circuit:

Larrabee, 968 F.2d at 1501, quoting 38 U.S.C. § 7292. See also Sugrue, 26 F3d at 11 ("[T]he courts do not acquire jurisdiction to hear challenges to benefits determinations merely because those challenges are cloaked in constitutional terms.").

In Hall v. U.S. Department Veterans' Affairs, 85 F.3d 532 (11th Cir. 1996), the Eleventh Court affirmed, on grounds of lack of subject-matter jurisdiction, the dismissal of a challenge by an incarcerated veteran to the constitutionality of a VA regulation, 38 C.F.R. §3.665, which requires reduction in disability compensation during periods of incarceration in excess of sixty days for felony convictions. The Eleventh Circuit held that, "[a]side from the avenue of review made possible by the VJRA, judicial scrutiny of the regulation is available exclusively in the Federal Circuit Court of Appeals in accordance with 38 U.S.C. § 502." 85 F.3d at 535. It is, therefore, clear that, under 38 U.S.C. § 511(a), constitutional challenges to VA regulations and procedures must be filed with the CAVC under 38 U.S.C. § 7252 or, in the case of direct review of regulations pursuant to 38 U.S.C. § 502, with the United States Court of Appeals for the Federal Circuit. Id.

This Court must similarly reject any attempt by the plaintiff to hide his true cause of action in order to avoid the prohibitions of 38 U.S.C. § 511. This Court must examine the substance of plaintiff's allegations, as aided in this case by a review of the Administrative Record relating to a denial of veterans' benefits, rather than their labels, to determine their true nature. See, Weaver, 98 F.3d at 520. See also Hicks v. Small, 69 F.3d 967, 970 (9th Cir. 1995)("[D]etermination of [plaintiff's] tort claims would necessitate a `consider[ation of] issues of law and fact involving the decision to reduce [plaintiff's'] benefits,' a review specifically precluded by 38 U.S.C. § 511(a)."). Plaintiff's allegations demonstrate that he is challenging the VA's denial of benefits. Such is evidenced by his contention that "[t]he VA has made several mistakes in their decisions in this matter" (doc. 12 at ¶ 1) and "[t]hese mistakes are I feel an injustice to me and that is why I am pleading for this court to take the case and get it out of the V.A's control. (id. at § 8). Jurisdiction is precluded by 38 U.S.C. § 511(a) and, as such, this action is due to be dismissed for lack of subject matter jurisdiction. See Vickson, supra, 2012 WL 1606012 at 1 ("Claims concerning veterans' benefits are governed by 38 U.S.C. § 511, a statute curtailing this Court's review of VA benefits determinations.").

CONCLUSION

For the reasons set forth above7, it is recommended that the defendant's motion to dismiss (doc. 5) be GRANTED.

The instructions that follow the undersigned's signature contain important information regarding objections to the report and recommendation of the Magistrate Judge.

The Clerk is hereby directed to serve plaintiff with a copy of this Order both by regular and certified mail, return receipt requested.

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

Objection. Any party who objects to this recommendation or anything in it must, within fourteen days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.

Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.